Stricklin v. Chicago, M. & St. P. Ry. Co.
| Decision Date | 29 March 1921 |
| Docket Number | 4307. |
| Citation | 197 P. 839,59 Mont. 367 |
| Parties | STRICKLIN v. CHICAGO, M. & ST. P. RY. CO. ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Teton County; J. B. Leslie, Judge.
Action by Warren Stricklin, as administrator of the estate of Thomas Carter Stricklin, deceased, against the Chicago, Milwaukee & St. Paul Railway Company and another. From judgment of nonsuit, plaintiff appeals. Affirmed.
D. J Ryan and W. P. Costello, both of Great Falls, for appellant.
Cooper Stephenson & Hoover, of Great Falls, for respondents.
This is an action for damages for death by wrongful act. It is alleged in the complaint, in effect, that on March 6, 1917 Thomas Carter Stricklin was upon a bridge or trestle which formed a part of the track of the defendant railway company's road; that an unobstructed view of his position could be had for more than half a mile; that he was not observant of the approach of defendant railway company's locomotive, and that defendants did see, or by the exericse of ordinary care could see, that he was in a position of peril and unobservant of the approach of the locomotive; that he was seen, or by the exercise of ordinary care could have been seen, by defendants, but nevertheless defendants negligently failed to give warning of the approach of the locomotive and negligently permitted it to strike the said Thomas Carter Stricklin, inflicting injuries from which he died.
At the trial counsel for defendants objected to the introduction of any evidence upon the ground that the complaint does not state a cause of action. The objection was sustained, but in its order the trial court pointed out the defect, namely that the allegations charging negligence are in the alternative and do not disclose actual discovery. The opportunity was extended to counsel for plaintiff to amend the complaint in the particular mentioned, but it was declined, and the court thereupon granted a nonsuit and rendered judgment dismissing the complaint. From that judgment this appeal is prosecuted.
Counsel for appellant, in his brief, concedes that the deceased, at the time of his injury, was a trespasser upon the track of the railway company, and that recovery can be had, if at all, only under the doctrine of the last clear chance. It is established by the repeated decisions of this court that in order to make out a case within that doctrine, the following facts must appear from the pleadings and proof:
Dahmer v. Northern P. Ry. Co., 48 Mont. 152, 136 P. 1059; Anderson v. Missoula Street Ry. Co., 54 Mont. 83, 167 P. 841; McIntyre v. Northern P. Ry. Co., 56 Mont. 43, 180 P. 971.
In order to invoke the doctrine of the last clear chance, plaintiff must allege that the perilous position of the injured party was actually discovered by the defendant in time to avoid the accident, and the negligence which will authorize recovery consists in the failure to exercise due care to avert the injury after such actual discovery. In attempting to fix responsibility in this instance, it is alleged that the perilous position of the injured party was observed by the engineer in charge of the locomotive or, in the exercise of due care on his part, should have been observed. It is the rule of pleading announced by our Code that the facts constituting plaintiff's cause of action must be set forth "in ordinary and concise language." Rev. Codes, § 6532. The rule requires the facts to be stated by direct averment so that the party who is to answer may understand the specific acts of remissness with which he is charged and that material issues may be framed for trial. Highland Ave. & B. R. Co. v. Dusenberry, 94 Ala. 413, 10 So. 274. If different averments in the complaint refer to the same ultimate fact and each of them is pertinent to the single cause of action, the pleading is not open to the objection that the cause of action is stated in the alternative, though the averments are in the disjunctive. Hasberg v. Moses, 81 A.D. 199, 80 N.Y.S. 867. But where the complaint alleges in the alternative two statements of fact, one of which is sufficient to constitute a cause of action and the other not, they neutralize each other and subject the pleading to a general demurrer. 21 R. C. L. 451; note to Grbich v. Pittsburg Iron Ore Co., Ann. Cas. 1914A, 1238.
The refusal of counsel for plaintiff to amend the complaint and make it charge positively that the perilous position of the...
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